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    31.    
City Council Regular
Meeting Date: 02/14/2017  

SUBJECT:
MUNICIPAL CODE AMENDMENT TO PROHIBIT SPECIFIC OUTDOOR AND COMMERCIAL MARIJUANA-RELATED USES AND ACTIVITIES
RECOMMENDATION:
ADOPT AN ORDINANCE APPROVING MUNICIPAL CODE AMENDMENT NO. 17MCA01 TO AMEND CHAPTER 16.02.250 OF THE MUNICIPAL CODE RELATIVE TO DEFINITIONS OF MARIJUANA USES, AMEND APPENDIX A OF THE MUNICIPAL CODE RELATIVE TO MARIJUANA RELATED USES, AND ADD  CHAPTER 16.92 TO THE MUNICIPAL CODE TO PROHIBIT SPECIFIC OUTDOOR AND COMMERCIAL MARIJUANA-RELATED USES AND ACTIVITIES IN ALL ZONING DISTRICTS OF THE CITY, AND DETERMINING THE MUNICIPAL CODE AMENDMENT IS EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT.
BACKGROUND/ANALYSIS:
On November 8, 2016, the voters approved a statewide initiative entitled the “Control, Regulate and Tax Adult Use of Marijuana Act” (AUMA).  The AUMA controls and regulates the cultivation, processing, manufacture, distribution, testing and sale of nonmedical marijuana, including marijuana products, for use by adults 21 years of age or older.  The AUMA does not, and cannot, affect federal laws and regulations pertaining to marijuana or its derivatives.  The AUMA expressly preserves local control over the regulation of marijuana-related business and marijuana-related land uses. The following are some of the key provisions in the AUMA:
  • It is now lawful under state and local law for persons 21 years of age or older to possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever up to 28.5 grams of marijuana in the form of concentrated cannabis or not more than eight grams of marijuana in the form of concentrated cannabis contained within marijuana products.  (Health & Safety Code § 11362.1, subds. (a)(1) and (a)(2).) 
  • A person 21 years of age or older may possess, plant, cultivate, harvest, dry, or process not more than six living marijuana plants and possess the marijuana produced by the plants.  (Health & Safety Code § 11362.1, subd. (a)(3).)  A city or county may adopt and enforce reasonable regulations pertaining to this personal cultivation of marijuana, but no city or county may completely prohibit the personal cultivation of marijuana if it is conducted within a private residence or within an accessory structure to a private residence.  (Health & Safety Code § 11362.2, subds. (b)(1) and (b)(2).) 
  • Local jurisdictions may adopt and enforce local ordinances to regulate state-licensed marijuana business, including, but not limited to, local zoning and land use requirements, business license requirements, and requirements related to reducing exposure to secondhand smoke.  Local jurisdictions may also completely prohibit the establishment or operation of one or more types of marijuana-related businesses licensed pursuant to the AUMA.  (Business & Professions Code § 26200.) 
     
  • Local jurisdictions may not prevent transportation of marijuana or marijuana products on public roads by a state licensee transporting marijuana or marijuana products in compliance with state law.  
  • The AUMA does not permit smoking of marijuana in public places or other places where tobacco smoking is prohibited, and prescribes penalties for violators.  (Health & Safety Code §§ 11362.3, subds. (a)(1) and (a)(2); 11362.4, subds. (a) and (b).) 
Two urgency ordinances were previously approved by the City Council.  The first ordinance amended Chapter 5.28 to expressly prohibit all commercial marijuana activities (regardless of purpose) and to prohibit all cultivation of marijuana with the exception of the cultivation of up to six plants within a private residence.  Under the AUMA, cities and counties may not completely prohibit indoor personal cultivation of up to six marijuana plants, but may enact and enforce reasonable regulations pertaining to personal, indoor cultivation.  The second urgency ordinance focused on marijuana-related land uses and imposed a 45-day moratorium on all marijuana-related land uses, as defined, during which time no permit or license of any kind can be issued for a marijuana-related land use.  This moratorium was subsequently extended by the City Council for an additional 10 months and 15 days. The moratorium was intended to allow reasonable time for the City to consider whether to formulate and adopt zoning standards and regulations governing marijuana-related land uses, or whether to prohibit such uses in their entirety. In addition to the two urgency ordinances, City Council adopted a non-urgency ordinance amending Chapter 5.28 in an identical manner to the first urgency ordinance. 

This proposed ordinance, 17MCA01, would repeal the ordinance adopting  the moratorium and add the following amendments and/or additions to the Municipal Code:
  • Chapter 16.02.250 of the Municipal Code is amended to delete the alphabetical list of definitions for “marijuana” and “medical marijuana cultivation.” 
  • Chapter 16.92 is added to the Chino Hills Municipal Code as set forth in Exhibit A, to the Proposed Resolution. 
  • Appendix A of the Municipal Code is amended to delete the category for “medical marijuana cultivation” and to add use categories for “marijuana establishment” and “marijuana-related activity” to the alphabetical list to read as follows:
 
Medical Marijuana Collective Not permitted in any zoning district
Medical Marijuana Cultivation Not permitted in any zoning district
Marijuana Establishment Not permitted in any zoning district
Marijuana-Related Activity Not permitted in any zoning district
 
Marijuana uses are known to result in negative direct and secondary impacts on the health, safety and welfare of citizens, particularly when unregulated. These negative impacts include illegal sales and distribution of marijuana, trespassing, theft, violent robberies and robbery attempts, fire hazards and building hazards, and offensive odors. In addition to the negative effects recited above, marijuana cultivation and distribution can attract crime, lead to fires, expose minors to marijuana, negatively impact neighborhoods, damage buildings, require dangerous electrical alterations and use, and create the nuisance of strong and noxious odors.[1]  In Colorado, where recreational marijuana is legal and commercialized, marijuana-related traffic deaths increased 92% from 2010 to 2014 while all traffic deaths increased only 8 percent during the same time period.[2]    
Use of marijuana by Colorado teens ages 12-17 is at least 56% higher than the national average.[3]  A study released in May 2016 by AAA Foundation for Traffic Research found that fatal crashes involving drivers who recently used marijuana doubled in the state of Washington after it legalized marijuana.[4]  Based on these facts and other evidence, there is a concern that the proliferation of marijuana-related businesses and activities in the City would result in increased crime and other negative secondary effects like those experienced in other communities throughout California and around the country.  By expressly prohibiting commercial marijuana activities and marijuana cultivation to the maximum extent authorized by State law, the City can further safeguard against the detrimental secondary impacts associated with such activities. A complete prohibition on commercial marijuana activities and marijuana cultivation in the City of Chino Hills is necessary to avoid the deleterious secondary effects of such activity as detailed herein.
 
Moreover, the possession, use, transportation, distribution, sale, and other marijuana-related activities, for medical or recreational purposes, remain illegal under the federal Controlled Substances Act. Marijuana is classified as a Schedule 1 substance; a designation reserved for substances with a high propensity for abuse and addiction, and lacking any recognized medical benefits.

At this time, it is unclear how the AUMA will be implemented by the State, and whether the statutory scheme will adequately address local health, safety, and welfare concerns. In fact, the State’s deadline for adopting a state licensing structure is January 1, 2018, and staff’s understanding is that licenses are unlikely to be issued before then. Thus, the City has not had and will not have the opportunity to study the potential health, safety, and welfare impacts of recreational marijuana on local residents, businesses, and the community before the moratorium would have to be lifted because moratoriums can only remain in place for a maximum of two years.
 
Adopting this ordinance now will preserve the status quo and be consistent with the federal law prohibition as much as possible. Once the AUMA has been fully implemented across the State and other jurisdictions have explored various methods of legalizing and regulating it, the City can, if it so chooses, revisit the issue in the future. 
 
[1] White Paper on Marijuana Dispensaries, California Police Chiefs Association’s Task Force on Marijuana Dispensaries, April 22, 2009, p. 12.
[2] The Legalization of Marijuana in Colorado:  The Impact, Rocky Mountain High Intensity Drug Trafficking Area, Vol. 3, September 2015, pp. 14-15.
[3] Id. at pp. 35-36.
[4]  Prevalence of Marijuana Involvement in Fatal Crashes:  Washington, 2010-2014, May 2016, AAA Foundation for Traffic Safety.

GENERAL PLAN CONSISTENCY
 
The proposed ordinances are consistent with the Chino Hills General Plan Land Use Element Goal LU-3: Maintain the Integrity of City Neighborhoods. By prohibiting the establishment or operation of commercial marijuana uses, the City is preventing the negative secondary effects and adverse impacts of marijuana businesses. Further, this ordinance clarifies the City’s existing regulations on distribution and cultivation of marijuana that prohibit any activity illegal under federal law.

PLANNING COMMISSION REVIEW
 
On January 17, 2017, the Planning Commission held a public hearing on the proposed ordinance and voted to recommend approval of the ordinance to the City Council 5-0.
 
 
ENVIRONMENTAL (CEQA) REVIEW:
Adoption of the proposed ordinance is exempt from the provisions of the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., “CEQA”) and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because the ordinance is categorically exempt from further CEQA review pursuant to 14 Cal. Code Regs. § 15061(b)(3),  this ordinance makes clear that marijuana-related uses and activities are not permitted in the City, and it can be seen with certainty that there is no possibility that the ordinance will have a significant effect on the environment. The ordinance does not promote and development or changes to the physical environment.  (minor alterations in land use limitations) and 15308 (actions taken as authorized by local ordinance to assure protection of the environment).  Further, this ordinance does not have the potential to cause significant effects on the environment and, therefore, the project is exempt from the CEQA pursuant to 14 Cal. Code Regs. § 15061(b)(3).  This ordinance amends the Chino Hills Municipal Code to expressly prohibit commercial marijuana activities and outdoor cultivation of marijuana in the City.  The City is not aware of any existing marijuana commercial uses in Chino Hills, and the proposed ordinances would maintain the status quo. The ordinance does not portend any development or changes to the physical environment.  Following an evaluation of possible adverse impacts, it can be seen with certainty that there is no possibility that the ordinances will have a significant effect on the environment. 
FISCAL IMPACT:
None.
Attachments
Ordinance

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